Country Reports: Western Europe

Belgium

A New Form of Foundation Soon to be Introduced in Belgium?

Bart A. Servaes

1. New bill. In November of last year the Belgian government submitted a draft bill to the Federal Parliament in order to amend the Law of June 27, 1921 regarding nonprofit associations and public benefit foundations (see Ordinary Session of the Chamber, 1854 - 98/99, Nos 1 to 9). Because of the intervening general elections for a new Federal Parliament (June 13, 1999), the bill did not pass through both houses of the Parliament in a timely manner. It is generally expected, however, that the bill will be approved shortly after the formation of the new government and enter into effect before the end of this year.

2. Nonprofit associations. With regard to nonprofit associations, the main intention of this bill is threefold: (i) to increase the transparency, from an accounting point of view, of the nonprofit associations, (ii) to strengthen the control over such associations by the courts, their members and their creditors, and (iii) to adapt the Law of 1921 to the requirements of the modern society in which the associations must operate (e.g. the possibility to engage in commercial activities; removal of nationality requirements for their members, et cetera).

3. Foundations. The new bill also intends to reform the Belgian legal framework for foundations. The parliament seems to respond therewith, at least partially, to a number of criticisms that have recently been made in the legal doctrine with regard to the regulatory regime for foundations in Belgium. The main reproach in this regard was the limited number of purposes for which, under the current system, a foundation can be created. According to some authors, this not only prevented the efficient structuring of a variety of initiatives aimed at the enhancement of the general well-being, but also caused an outflow of capital from Belgium to other jurisdictions where more flexible legal regimes for foundations exist (see Banmeyer, I. & Talbot, C., “Les fondations: état présent et idées de réforme”, Ann.dr.Louvain, 1998, 25-77). In addition, from a corporate perspective, one had been searching for an appropriate vehicle for the certification of securities of Belgian limited liability companies, a possibility introduced recently by the law of July 15, 1998 (this is a technique comparable to the issuance of depositary receipts under U.S. laws). More than one Belgian legal writer looked enviously to the North, where the “stichting”, a private foundation under the law of the Netherlands, has been successfully used for the last 10 years for such certification initiatives (see Denef, M. & Hamers, J., “Beginselen van Verenigingsrechtelijke Systematiek: binationaal bekeken”, in Beginselen van vennootschapsrecht in binationaal perspectief, Wouters, J. & de Kluiver, H.J. (ed.), 1998, (79) p. 81). Again, the current legal framework in Belgium prevents the use of foundations for such purposes.

4. Private foundations. The bill introduces a new form of foundations under Belgian law: besides the public benefit foundation, already regulated in chapter II of the law of 1921, it should now become possible for individuals or companies to create private foundations. The distinction between public benefit foundations and private foundations lies in the purpose for which they are conceived. A public benefit foundation can only be created for the enhancement of philanthropy, religion, science, art, culture or education. A private foundation can be used for any purpose, as long as it does not engage in commercial activities nor have as its aim the enrichment of the foundation. The legislative history lists a number of examples, such as the conservation of a private art collection, the development of a region, the preservation of the private and closed ownership of an enterprise. Other examples could be the support of a handicapped child after the death of its parents or the creation of a foundation for each new-born in a family to ensure that each of them begins life on an equal footing. Others might use it for the eternal or temporary support of a favorite football club or political party.

5. Creation. Another major difference between public benefit foundations and private foundations lies in the manner in which they are created. Public benefit foundations must obtain the approval of the government before they can exist as a legal entity separate from its creator. For private foundations, the intervention of a notary suffices, and they will obtain legal personality as soon as the required publication formalities have been complied with.

6. Control. It is also interesting to point out the difference in how the two kinds of foundations can be controlled. Indeed, since foundations are usually intended to exist beyond the lifetime of the founder, it is essential that an independent control is exercised upon the managers of the foundation, who will naturally come and go over time and might use the goods for other objectives than for which the foundation was originally conceived.

For this reason, public benefit foundations are subject to direct supervision by the government. The government exercises this control by reviewing the annual accounts of public benefit foundations, which they are legally obligated to prepare and submit to the government. In addition, the public prosecutor has the power to take any necessary actions before the courts against the administrators of the foundation or against the foundation itself in order to compel compliance. It has been asserted by some authors that, notwithstanding the limited number of public benefit foundations in Belgium, such form of control can hardly be effective in light of the numerous other public supervision tasks the government must already fulfill. In addition, the authors cite the government’s lack of experience in these matters as another reason for criticism

Probably with this critique in mind, the newly proposed private foundations are not put under direct supervision by the government. Instead, the possibility has been created to delegate supervision of a private foundation to an independent accountant, whose task consists of reviewing the annual accounts prepared by the administrators of the foundation. In that regard, the accounting and auditing regime created for the non-profit associations will be applied to private foundations. It remains doubtful, however, whether this is a sufficient and efficient protection against abuses. Indeed, although the administrators are now obligated to prepare annual accounts, the bill has not described to whom such accounts must be submitted. Unlike a nonprofit association, a foundation does not have any members. Moreover, the new law does not contain an explicit obligation to appoint an auditor and it remains therefore up to the founder, and the advising notaire, to be sufficiently prudent and to appoint one in the constituting document. Finally, the question remains what can the accountant do to protect the interests of the foundation: there is no general meeting of members to which the accountant can report and vis-à-vis whom the administrators must justify themselves. The only recourse for the auditor is to file a complaint with the public prosecutor or directly with the courts. Unfortunately, the only option a court seems to have under the bill is to declare the dissolution of the foundation, be it at the request of the public prosecutor or of an interested third party. This is different from the regime applicable to public benefit foundations, where the courts have been granted the explicit power to remove and replace the administrators in the event that they are using the goods for other purposes than for which the foundation was created or if the administrators turn out to be incompetent.

It is unfortunate that in light of the absence of a body such as a general meeting of members and the possibilities for fraud and abuse of the concept of private foundations, the bill drafters have not given more attention to the development of an efficient control (compare for example, with the “stichting” under Dutch law where the supervision of the public authorities is quite important and the courts have been granted broad powers to intervene in the management of a foundation; see W.J. Slagter, Ondernemingsrecht, 1996, §95).

7. Liquidation. Private and public benefit foundations also differ in the way their liquidation is regulated by the new law. When a public benefit foundation is dissolved, the law requires that the assets will be used as nearly as possible to the purposes for which the public benefit foundation was originally created. As is the case for nonprofit associations, this explicit requirement does not exist for private foundations. Nevertheless, with regard to nonprofit associations, it is generally accepted that, notwithstanding the absence of such an explicit requirement in the law, upon liquidation the assets must be used for a purpose that is closely related to the goal for which the nonprofit association was originally incorporated. This reasoning will probably be equally applicable to private foundations. Nevertheless, the absence of a written rule in the draft law seems to give the founders a bit more freedom than is the case with public interest foundations.

8. The question has been raised whether a private foundation can be used for the certification of securities of Belgian companies, if indeed upon liquidation the assets of the private foundation can only be destined for a similar purpose. Indeed, certification requires that the securities owned by the private foundation, and for which the private foundation has issued certificates, must be returned to the owners of the certificates when the foundation ceases to exist (or in certain other situations foreseen by law). The legislative division of the Administrative Supreme Court gave a negative answer to this question precisely in light of the designation of the assets. Nevertheless, it has been correctly suggested that nothing prevents the certificated securities from being transferred to another foundation with the same purposes. Moreover, the law on certification explicitly foresees in an automatic transformation of the certificates into the underlying securities in the event of a liquidation of the issuer of the certificates (see P. BAERT, “Certificering van vennootschapseffecten: bij de noorderburen over het muurtje kijken”, TRV, 1999 (127), p. 141).

9. Conclusion. By making private foundations an option, Belgium will finally join the numerous other jurisdictions in Europe where such institutions have been a reality for many years. This is a major development which was long overdue. Only time will tell, however, whether the legislative framework as it exists today is sufficient to give the courts an efficient tool to regulate and control all aspects of such a major new legal institution under Belgian law.

Italy

Operating Concessions as a Factor in the Growth of Non-Profit Concerns and a tool for Reform of the Welfare State

Summary:

Models of Welfare State: the Italian choice.

Operating concessions from the standpoint of government and of non-profit concerns.

When is a concern genuinely non-profit? The insufficiency of the non-distribution constraint.

1. Models of Welfare State: the Italian choice

When a State grounds its economic and social policy and action on the principles of the Welfare State, it necessarily does three things.

First, it determines which goods and services (health care, education, cultural heritage, etc.) should be supplied, for reasons of solidarity and social justice, to all citizens, regardless of their economic means.

Second, it lays down the rules by which this must be accomplished: for instance, universally free of charge, participation by the consumer in the costs of production (fixed or variable charges depending on objective needs such as the nature of the service or subjective characteristics such as state of health, individual capabilities, income and the like).

Third, it determines how the cost is to be shared among all the members of the community via the government budget. As supplying certain goods and services entails costs that are sustained only in part, if at all, by their beneficiaries, these costs are covered by budgetary allocations, i.e. by the entire community. This burden, in turn, is distributed among the members of the community according to the principals governing the public finances and tax policy and the rules followed in financing public costs in general (the mix of tax and non-tax revenues, of direct and indirect taxes, of proportional and progressive income taxes, and so on).

These decisions rehearse the essence of the Welfare State: the State takes the responsibility for economic and social policy and makes sure of satisfaction of needs that the market, left to itself, cannot serve without violating the sense of justice and social solidarity that inspire the community. To achieve this, the State need only set the «rules of the game»; it is enough, in other words, for it to act as regulator.

Sometimes, though, the State also acts as producer; that is, it directly organizes the factors of production and takes on management and operational responsibilities, in what can be dubbed «self-production».

It is the variable combination of the two roles that generates the different models of Welfare State: some more essential and streamlined, others involving a heavier burden of tasks and responsibilities for government.

In Italy, the State has taken on both roles, thus greatly extending its functions, concentrating in public hands responsibility for the supply of a multitude of services, such as health care, education, compulsory social security, the cultural and environmental heritage, and so forth.

An obvious consequence is that the State is often in a dominant position in the supply of certain goods and services. It operates, that is, in monopoly or near-monopoly conditions. In such circumstances the scope for non-profit initiatives, which generally come in the same sectors in which the Welfare State acts, is cramped indeed.

In principle, no absolute preference for one model over another can be assigned. Depending on time, place, and circumstance, one solution or another may prove preferable.

In Italy, the assignment to the State of the role of both regulator and producer is showing its weaknesses, and it is more and more widely recognized that the State can and must diminish its involvement in the production side and concentrate on the essential regulatory functions of planning, guidance and control.

It being premised that it remains in the general interest that some goods and services be provided to all citizens, and in particular to the poor and disadvantaged, according to rules and standards laid down by government and at public expense, their production may nonetheless be assigned to other agents: in our case non-profit concerns, which often operate more efficiently and produce better services than direct public management.

This is not the place for an examination of why in Italy, in our historical period, it has often though not always been the case that direct public provision of services has been worse than that of non-profit concerns. Rather, we must ask how it is possible, in the general interest, to modify the division of production responsibilities between government and the non-profit sector in order to better serve the needs of individuals and thereby the welfare of the community.

In principle, two different approaches are possible.

Retain the present public production role and give non-profit concerns the task of meeting only new, emerging needs. Traditional needs would still be seen to by the State, in the dual role of regulator and producer; for new ones, the State would act solely as regulator and non-profit concerns as producers.

Bring about the conditions in which the State, while keeping its full regulatory powers, can curtail its role as provider, including the areas in which it now directly supplies services, and turn responsibilities over to non-profit concerns under suitable rules and safeguards, which need to be established.

Obviously, under approach ( a) the increase in the incidence of production by the non-profit sector is a function of the rate of growth of new needs compared with those now serviced directly by the State. As the State currently operates virtually everywhere and virtually monopolizes supply in many areas, it is easy to foresee that the change in the balance will be slow, even if there are imperious new needs.

Under approach ( b) the expansion of the non-profit sector relative to the public is potentially faster, because it depends only on the proportion of production responsibilities that the authorities decide to transfer.

The question is how, in practice, one can implement plan ( b), rapidly reducing the public role as producer. The best instrument is the operating concession, a method widely used in other branches of the economy and typically entrusting the operation of some services or the production of some goods to private businesses[1].

Let us examine, then, how operating concessions can be useful in achieving a new division of the responsibilities for the production of Welfare State goods and services.

2. Operating Concessions from the Standpoint of Government and of Non-Profit Concerns

For obvious reasons the switch from direct public production to «indirect» production of certain goods and services must be gradual; all the more so given the initial situation of widespread self-production in monopoly or near-monopoly conditions.

The State might consider the concession of activities now performed directly to organizations offering sufficient guarantees, such as the non-profit concerns.

For instance, it could transfer the operation of a museum, an archeological site, or a hospital to a non-profit concern that has demonstrated its capacity to perform satisfactorily, with prior agreement on minimum standards of quality and efficiency; if the concessionary failed to meet the standards it would be required to make up the difference out of is own resources, not at the expense of the public purse.

For the community, such a process begins to be economically worthwhile when the concessionary produces more or better goods or services at the same cost of direct public operation or else when, for equal quanitity and quality of output, it sustains lower costs.

The State would pay a predetermined amount to the concessionary for the service, taking account of the agreed standards of quality and efficiency. As a result, the cost of production would still be defrayed by the State; the modalities of payment would also remain unchanged, as the concession to non-profit concerns would not, in and of itself, entail modification of the way in which the State covers the costs of providing the goods or services.

Other things being equal, the gain to the community would consist in an improvement in efficiency and efficacy in service provision. Naturally, the concession might also perform «worse» than direct public provision, but in this case, as noted, the concessionary would have to make up the difference at no extra cost to the State. Hence the need to select non-profit concessionaries that are reliable in economic terms, capable of discharging their commitments and coping, if necessary, with the adverse effects of their own inefficiencies.

In this light one can grasp the full import of some relatively recent rules changes which, though addressed to other entities and varying in legal rank and content, constitute significant premises in law for the introduction of operating concessions to the non-profit sector. And it was precisely for this purpose that they were made.

The tax treatment of non-profit concerns was reformed by Legislative Decree 460/1997 [2], largely enacting the conclusions of the Zamagni Committee. The legislation introduces, effective 1 January 1998, a new principle governing economic relations between non-commercial entities, as the Decree calls non-profit organizations in general, and government.

"In any case the following items do not form part of the income of non-commercial concerns referred to in Article 87 (1c):

a) … omissis …;

b) contributions from general government bodies to the aforesaid concerns for the performance under convention or as an accredited body pursuant to Legislative Decree 502 of 30 December 1992, Article 8(7), supplanted by Legislative Decree 517 of 7 December 1993, Article 9 (1g), of activities for social purposes performed in conformity with the institutional purposes of the entities."

This clause is not simply one of the many tax breaks for non-profit concerns scattered through the tax code. It is much more. It truly lays the foundation for the redistribution of duties between the State and the non-profit sector. The purpose is to give incentives to non-commercial entities to take over the production of goods and services now produced directly by public agencies, relieving the latter of the heavy burden of direct economic operation.

Note that this innovation in no way questions the principle underlying the Welfare State, that in the name of solidarity and justice the community has elected to provide to all citizens, regardless of their economic resources, certain goods and services. For it is still the State that determines which goods and services shall be supplied, sets the rules under which this must take place, and decides the criteria for sharing the cost among all members of the community, via the public budget.

The law deliberately restricts this principle to the production or supply of goods and services. It is designed to galvanize a largely soporific system in order to achieve, in the general interest, greater efficiency, which can only be attained insofar as private non-commercial concerns produce a better combination of productive factors than the State.

To date, the full potential of the principle has not been grasped. But allowance must be made for the fact that it has only been in force for a few months. It is very broad indeed in scope, in that it excludes from non-commercial concerns’ income contributions:

from general government; this term is not limited to central government departments and agencies but extends to all State bodies, both central and local, and to non-state public bodies such as local governments and public bodies in general [3];

for services provided under convention or provided by accredited bodies (typical of the health care system) for social purposes performed in conformity with the institutional purposes of the entities. The performance of activities under convention is the standard way of implementing operating concessions, as these concessions are governed by conventions.

The term "contributions" itself, as used in the law, must be taken in its broadest sense, referring not just to transfers (the charges on the public budget with no corresponding service on the part of the beneficiary) but also covers compensation for services [4].

Even these brief observations should suffice to underscore the enormous import of the new law and its still unrealized potential.

Another act comparable in intent if inferior in legal rank, nature, and persons covered is the «Dini» directive of November 1994, governing some aspects of what are commonly called "banking foundations[5]."

Article 5(2) of the directive specifies that "The institutions can achieve their statutory purposes also by means of performance of public services under concession."

When the directive was issued, some people were much surprised. Until very shortly before, the discussion on the foundations, their new non-profit role after separation from the banking concerns proper, and how to realize it had turned generally on whether the foundations should support other institutions’ initiatives, as they had always done in the past, or employ their resources in intiatives of their own, taking direct responsibility (acting themselves) or indirect (through affiliates, presumably also non-profit organizations, that they controlled).

Just months before the issuance of the Dini directive, the discussion had revived, after a period of being overlooked in the general concentration on the splitting-off from the banks.

In October 1993 Italian association of savings banks held a conference on the topic: "Ruolo e natura degli enti conferenti: problemi e prospettive" (The role and the nature of banking foundations: problems and prospects).

Here, a set of proposals decisively broadened the horizons of the debate.

One of the ways in which these foundations could achieve their purposes suggested by the conference was, in fact, for them to take over, under concession, some services or activities operated directly by government bodies — a third way besides funding the initiatives of others (old or new) or undertaking action themselves [6].

Within a few months the directive adopted this proposal, explicitly authorizing the foundations to operate under concession and creating the premise for a redivision of production between public bodies and this significant group of non-profit entities, with their substantial economic resources.

Authorization to perform public services as concessionaries does not extend to any and every type of activity; it is restricted to the sectors in which the institutions are permitted to operate [7], thus excluding banking foundations, for instance, from being concessionaries for highway or telecommunications services. The directive ties the possibility of being a concessionary for public services irrevocably to the statutory purposes of the institutions ("The institutions can achieve their statutory purposes also by means of ...").

Here again, the intention is clear: expressly authorizing these foundations to act as concessionaries establishes the conditions whereby this important class of non-profit institutions can take over some public service provisions functions, possibly allying with other, specifically qualified non-profit concerns depending on the nature of the initiative being carried out (sector, location, duration, etc.).

3. When is a Concern Genuinely Non-Profit? The Insufficiency of the Non-Distribution Constraint

Students of non-profit concerns are often asked to respond to a seemingly banal question: when is it that a concern can be called genuinely non-profit? What are the economic requirements? And when, consequently, can the authorities be relatively sure that they are dealing with truly worthy concerns? For these concerns, though moved by non-economic purposes, inevitably have to do with the procurement, conservation, transformation, and consumption of wealth [8].

A number of observers have commented on the limitations of the residual category of «non-profit» concerns, conventionally used to distinguish them from for-profit concerns, so called enterprises, firms or equivalent [9].

Let us recall that enterprises are only created and kept in existence insofar as there is the prospect of some economic gain for those who residually supply the productive factors, hence assume the general economic risk and for that reason take control.

Ordinarily, such economic gain takes the form of a surplus, an excess of revenues over costs; this is typical of capitalistic firms, in which the residual position is held by equity capital. In this case the economic gain can be considered appropriate to the extent to which the enterprise’s surplus, taking risk into account, is at least equal to the remuneration that could have been earned by an alternative investment of the capital.

The prospect of economic gain that defines every enterprise may also be implicit, however, as is the case of some cooperatives. For instance, the growers who supply their crop of grapes or olives to a wine or olive-oil producing and marketing cooperative, of which they are members, do so because they expect to earn more than by selling their crop directly on the market. Otherwise, they would not deliver their crop and take payment depending on the outcome of the coop’s production and sales procedures. Similarly, members of building cooperatives expect a specific economic gain: to purchase a certain type of dwelling at a lower price than they would have to pay on the open market. Without this prospect, they would hardly join.

In both cases, the motive for the creation and maintenance of the enterprise continues to be economic gain. The nature of the gain is different, however. It no longer consists in the explicit surplus earned by the capitalistically organized company but in an implicit economic gain for those who assume the risk. In the case of a farmers’ coop, the risk lies in the contractual provision that payment for one’s raw product depends on the proceeds from sale of the finished product, with no assurance that such remuneration will be greater than would have accrued from direct sale of the raw material on the market. In the building coop, the risk lies in the prior commitment to defray the cost of construction without assurance that in the end one will actually spend less than by simply purchasing one’s home in the real estate market.

In all forms of enterprise, no matter how the economic gain materializes, the drive for economic behaviour and economically viable decisions is fueled by the conflict of interest between those who assume the general economic risk, confer productive factors that are remunerated on a residual basis, and therefore control the management, on the one hand, and on the other those who provide the enterprise with the productive factors required under contract. Other things being equal, the better the results for the residual productive factors, the less the costs for remuneration of contractual productive factors. In competitive markets, the spur to cost-cutting is especially strong, because only by containing them as strictly as the competition can the residual productive factors be suitably remunerated. In a competitive market, in fact, in contrast to monopoly conditions, economic viability cannot be attained by action on selling prices.

In enterprises, in short, the drive for economic viability naturally leads to cost containment. In competitive markets, it can be assumed that productive factors under contract are secured on market terms.

So much for the essential characteristics of enterprise. But we still do not know when we are dealing with a genuinely non-profit concerns.

If enterprises are defined by the profit motive, one naturally presumes that non-profit concerns are created and kept in being essentially for non-economic motives, certainly not to procure economic gain for someone. Such gains are perfectly legitimate, of course, for profit-making concerns but are foreign to the logic of the non-profit.

However, a non-economic motive, tantamount to the intention not to reap economic gain from the activity of the non-profit concern, is certainly not sufficient to define it. Intention alone is self-evidently insufficient, both because there is always the possibility of deliberate violation of the original intent and because even in the best of cases the results may not correspond to intentions.

In short, we need objective limits, going beyond the psychological and subjective realm of intentions. This is the background to the non-distribution constraint as the distinctive trait of the non-profit concern: that is, a ban enshrined in the organization’s statutes on distributing profits or operating surplus [10] either during the life of the concern or on upon its dissolution, for whatever reason. Presumably it was felt that as the capitalistic enterprise is characterized by economic gain in the form of a surplus that is the property of those entitled to it and can be distributed immediately or set aside for future distribution, banning any such distribution at any time to anyone [11] would eradicate the economic motive. That is, the non-distribution constraint was deemed sufficient to preclude economic gains for third parties, and this in turn was felt to warrant talking objectively of another class of concerns, the non-profit ones.

And in fact if this constraint by itself could preclude economic gain to third parties, it would be at once the necessary and the sufficient condition for objectively discriminating between for-profit and non-profit concerns.

But as we shall see, the constraint alone is not enough to do the job.

4. The Object of the Non-Distribution Constraint

Ordinarily, the constraint is on distribution of the profit or operating surplus that the activity generates.

When a non-contractual productive factor (usually capital) is conferred upon a concern, one should ask whether the constraint applies not only to the surplus but also to the factor as such. That is, does the ban extend to the distribution (or, if you prefer, the restitution) of the original capital? An instance is the «own» capital of concerns controlled by foundations: can this equity be returned to the founders or not?

From the strictly economic standpoint, ignoring the countless non-economic reasons for doing so (ethical, social, religious, moral, solidarity, etc.), someone who today confers upon a concern capital that is not remunerated but simply returned to him in the future certainly makes no profit on the transaction. Even assuming zero inflation for the whole period, non-remuneration obviously entails an economic sacrifice, the forgoing of the alternative yield. Still ignoring the non-economic side, in case of inflation the sacrifice of forgone earnings is compounded by the loss of purchasing power.

Accordingly, having ascertained the impossibility of such an operation’s producing any sort fo economic gain (indeed, it results in a loss), there is no reason in principle to make the ban on the restitution of capital a sine qua non for the non-profit concern.

As a consequence, the non-distribution constraint can perfeclty well be limited to profits or operating surpluses, and not necessarily cover productive factors conferred upon the concern on a non-contractual basis.

Second, it must be considered that the constraint focuses on the relationship between the concern and third parties but governs only one particular aspect of the relationship, the distributability of the surplus generated (Table A). The constraint has no bearing whatever on relations between third parties whose object is the concern (Table B).

This is the case of non-profit concerns control of which can be transferred, either because they are incorporated, in accord with the principle of freedom of choice concerning corporate form (or, if you prefer, the prevalence of substance over form), so that control can be transferred in the usual way, or else because "atypical" transfers are always possible [12].

In either case, despite the non-distribution constraint, the transfer could be accompanied by some compensation, i.e. economic gain, for the person giving up control. The gain would not involve direct relations between the concern and third parties, which are the object of the constraint, but two third parties; yet the transaction would involve the concern.

However, given the constraint, it can be observed that the possible gains from transfers of control (no matter whether regular or atypical) would be very modest, and if the constraint is very strict, near zero. To be sure, it is hard to imagine what economic advantage could stem from taking control of a concern that can never distribute surpluses to anyone and even return productive factors conferred non-contractually. The advantage should be practically nil — if the only source of economic gain actually lay in these factors. Sometimes, however, the economic gain originates elsewhere, indirectly, through the fact of control, though no direct profit can be made.

A well-known case in point, for Italy, is provided by professional sporting companies after the reform law of 1981 [13]. In order to sign contracts with professional athletes, they had to take the form of a company limited by shares or a limited liability partnership. The law also required the reinvestment of all profits for the exclusive pursuit of sporting activity, and if the company was liquidated the owners of shares or capital parts could not receive more than their face value, any excess value being credited to the Italian National Olympic Committee. Finally, their acts of incorporation could subject the sale of shares or capital parts to special conditions.

Despite the non-distribution constraint (on profits only), and the limitation of reimbursement in case of liquidation to the amount of capital paid in, at most, everyone knows that sports corporations, most notably soccer teams, have often changed hands in return for very substantial sums of money, at handsome capital gains for those yielding control. Ruling out non-economic motives and irrational behavior on the part of the buyers — a reasonable assumption, given the frequency of such sales — the basis of the gain can only lie in indirect economic advantages deriving from control of the team.

This confirms that the non-distribution constraint is a necessary but not sufficient condition for preventing third parties from obtaining direct or indirect economic gain from a concern, because by nature the constraint cannot impinge upon relations between different third parties (Table B). Nor is that all. Even in relations between the concern itself and third parties (Table A), the constraint binds only profits or operating surpluses, ignoring the other economic advantages that may be derived from control of the concern.

5. The Non-Distribution Constraint and Indirect Distribution of Economic Gains

The non-distribution constraint applies to profits or operating surpluses already fixed in amount by a set of accounting rules. That is to say, it applies to the allocation of the final surplus, neglecting what happens previously, i.e. how the surplus is determined during operations.

This neglect of the process, whereby the surplus is generated, is based on the assumption that during the operative phase, from the purchase of productive factors to the sale of the product, third parties dealing with the concern cannot obtain (greater) economic gain than they would otherwise have been able to. And if this were effectively so, the constraint would be sufficient to prevent third parties from profiting indirectly.

Actually, however, economic gains can be allocated to third parties (either contractual suppliers of productive factors or users of the product) before the surplus emerges by acting on the components that determine it. That is, the concern can be so managed as to reduce or eliminate the eventual surplus, totally voiding the constraint of meaning.

As profits or operating surpluses represent the excess between the positive and negative components of the profit and loss statement (i.e., between revenues and costs), the question has two complementary facets.

The negative or cost components of gain distribution comprise indirect gains to third parties from dealings with the enterprise when the factors purchased (supplies, instrumental goods, services, credit, labor, etc.) are contracted for at higher than current market prices. This, for no reason, gives an evident economic advantage to the supplier; and obviously in its absence the concerns’ final profit or operating surplus would be larger.

Theoretically this problem could be dealt with by prohibiting the purchase of supplies at above the market price. It is not always easy to check compliance in practice, but we should not refrain from introducing the principle for this reason. The difficulties can be overcome with experience, applying the rule intelligently and with economic wisdom.

Note that, in principle, purchases of goods or supplies above market prices should always be prohibited, whether the persons involved are within the orbit of the concern and might be tempted to turn its activities to their own advantage (founders, directors, members, associates, sustainers, etc.) or outsiders who cannot wield influence (suppliers, customers, etc.). From the economic standpoint there is never a good reason for such purchases.

To be sure, the question is most pressing for persons who are within the immediate «orbit» of the concern and may have been led to form it or keep it in being for the sake of indirect gains for themselves, relatives, friends, subsidiary and associated businesses, and the like. Devices for extracting such benefits could include borrowing at exorbitant rates, paying outlandish salaries to "friends," or purchasing goods or services at higher than market prices from suppliers belonging to the same group that controls the non-profit concern. In any case, the ban on overpriced purchases should extend to all potential suppliers, regardless of possible conflicts of interest or influence on the non-profit concern.

This is the direction taken by several recent modifications of the tax treatment of a sub-category of non-commercial concerns designated "socially useful non-profit organizations" [14]. In Italy these are known by their acronym, ONLUS.

The organizations are the cutting edge of non-commercial concern, and their tax treatment — in return for satisfaction of stringent requirements — is the most liberal found in the Italian tax system.

In order to prevent these organizations from giving out economic advantages before the formal surplus is determined, the negative or cost components of the net operating surplus are subjected to restrictions:

"d) prohibition on distribution, including indirect distribution, of profits or operating surpluses as well as funds, reserves or capital ..." [15];

"6. In any case, the following shall be deemed to constitute indirect distribution of profits or operating surplus:

… omissis …;

the purchase of goods or services for amounts which, in the absence of sound economic reasons, are above their normal value;

the payment to members of administrative or control bodies of individual yearly emoluments higher than the maximum laid down by Presidential Decree 645 of 10 October 1994 and by Decree Law 239 of 21 June 1995, ratified as Law 336 of 3 August 1995, with subsequent amendments, for the chairman of the boards of auditors of companies limited by shares;

the payment to persons other than banks and authorized financial intermediaries of interest on any kind of loan that is more than four percentage points above the official discount rate;

the payment to employees of wages or salaries that are 20 percent higher than those stipulated in the national, industry-wide collective bargaining agreement for their job categories." [16].

Thus the law not only opts for the broadest acceptation of the non-distribution constraint (i.e., covering funds, reserves and capital) but also prohibits "indirect distribution" of the surplus, which it then proceeds to define in detail.

Paragraph 6(b) lays down the general principle: indirect distribution, which is prohibited, is defined as the purchase of goods or services at prices higher than "normal," this being a typical term in tax law that means, quite simply, market prices [17].

Paragraph 6(c), (d) and (e) refers to the more "delicate" — and more commonly practiced — instances of acquisition of goods and services involving indirect distribution of the surplus. These clauses place specific limits on (a) compensation to members of boards of directors and auditors, (b) the cost of loans from persons other than banks and other authorized intermediaries, and (c) employee compensation.

The positive or revenue components of surplus distribution are treated somewhat differently.

Of course, it must be recognized that an economic gain is conferred on third parties if the concern supplies goods or services free of charge or at less than market prices, where these exist.

Yet it is precisely the defining activity of many non-profit concerns to provide goods or services free or significantly below cost, the cost than being covered wholly or partly by private donations and public grants.

It therefore makes no sense to conceive of a rule that is the exact counterpart to those governing the negative components, namely to prohibit free or below-cost transfers of goods or services. Such a provision would attack the very nature of many non-profit concerns.

One might conclude that nothing need be said concerning the conferral of economic gain through the revenue side of the profit and loss statement. Yet some precautionary measures are in order here too, at least with respect to persons within the «orbit» of the concern who may influence its management.

One question is whether indiscriminate access to the concerns’ goods and services should be allowed solely because one is founder, director, partner, associate, sustainer, and so on. There would not seem to be much reason to answer in the affirmative. Especially in the case of valuable goods and services, it is too easy to "acquire" a personal right of access to the organization’s output even without any of the eligibility requirements imposed on other users.

At the other extreme, however, can one advocate simply disallowing access to the concerns’ output for all those in positions of authority? Again, the answer has to be negative. Why should the concerns’ employees, directors, partners, associates, or sustainers who have the same eligibility qualifications as outsiders be denied access to its goods or services?

The solution must be located between the two extremes.

For instance, indirect distribution of profits or operating surplus could be defined to include access to output on the part of persons in the orbit of the concern at more advantageous terms or under less restrictive conditions than those applying to outsiders. This would sharply restrict access to output on the part of persons holding certain positions but allow them to benefit where they satisfy the ordinary eligibility requirements.

In short, no advantage should accrue to persons involved in the concern, but neither should they be penalized for the fact that they might be tempted to exploit their position for personal gain.

This is the line taken by recent legislation governing socially useful non-profit organizations. The positive, or revenue-side, components of potential indirect distribution of economic gains are defined as follows:

"6. In any case, the following shall be deemed to constitute indirect distribution of profits or operating surplus:a) transfers of goods or provision of services to partners, associates or members, to founders, to members of administrative and control bodies, to persons that operate within the organization in any capacity or that form part thereof, to persons making donations to the organization, their relatives up to and including the third degree of kinship, and any companies directly or indirectly controlled by them or associated with them, that are effected on more favourable terms by reason of their status. … omissis …" [18].

All in all, these legislative reforms are a step in the right direction. Though reflecting the context in which they originated, the new provisions are the first attempt, to my knowledge, at a more advanced definition of the objective economic conditions that must obtain for a concern to be considered genuinely non-profit. This approach is a way out of the quicksand of judgment by intention, in which psychological considerations, while serving to denote certain characteristics of the non-profit concern, display evident and unacceptable shortcomings.

6. The Non-Distribution Constraint and the Reinvestment Obligation

In some cases, instead of laying down the conventional non-distribution constraint, it is preferred to impose an obligation to reinvest any surplus obtained. This attains the same result, but also something more.

The result is the same, in that requiring the surplus to be reinvested implicitly prevents it from being distributed. At the same time something more is obtained: a positive obligation to act rather a negative injunction, a prohibition.

All things considered, this is the better choice: though it needs to be properly modulated to avoid unwanted and economically irrational effects, this approach has solid economic foundations. The non-distribution constraint alone, in fact, leaves the concern theoretically free to accumulate surpluses without end, paying no attention to their use, i.e. whether or not the funds are employed for the statutory purposes.

On the other hand, it is plain that if the reinvestment requirement were formulated rigidly — say, as an injunction for immediate reinvestment, year by year, for the pursuit of statutory purposes — it would prevent the accumulation of resources for expenditure in future years when difficulties are foreseen; that is, it would preclude the countercyclical compensation between «fat» and «lean» years without which activity may undergo abrupt declines.

In conclusion, as long as it is formulated in such a way as not to burden the management of non-profit concerns with overrigid restrictions, the reinvestment requirement is a welcome innovation, one that attains the same purposes as the non-distribution constraint while also allowing for significant factors that elude the latter.

[2] The Decree is published in “Supplemento Ordinario” 1/L to Gazzetta Ufficiale della Repubblica Italiana, No. 1, 2 January 1998.

[3] For definitions of general government, see the national and Community systems of accounts. Regulation 2223/96/EC, 25 June 1996, on the European System of Accounts (national and regional) reads as follows: «The sector general government (S.13) includes all institutional units which are other non-market producers whose output is intended for individual and collective consumption, and mainly financed by compulsory payments made by units belonging to other sectors and/or all institutional units principally engaged in the redistribution of national income and wealth.» (Point 2.68). Like all Community regulations (and unlike directives), this lays down rules directly applicable and effective within the Member States of the European Union. The Italian rules for the public accounts and the national economic accounts follow this approach and distinguish, gradually widening the field of vision, between the State, the state sector, the enlarged public sector and - the point that interests us here - general government (Law 468 of 5 August 1978 with its subsequent amendments on the State budget and the public accounts).

[4] On this point, see application circular 124 of 12 May 1998, in which the Ministry of Finance’s Revenue Department specifies: «As to the nature of the contributions exempted, note that the rule, with its general reference to contributions from general government units for the performance under convention or as an accredited body of activities for social purposes performed in conformity with the institutional purposes of the entities, makes no distinction between unrequited transfers and contributions that are in the nature of compensation. Hence it is to be concluded that the exemption also covers contributions that partake of the nature of compensation.»

[5] Directive of the Minister of the Treasury of 18 November 1994, published in Gazzetta Ufficiale della Repubblica Italiana, “Serie Generale” No. 273, 22 November 1994.

[7] The areas in which the banking foundations can operate largely coincide with those of the Welfare State: health, education, art, scientific research, protection of disadvantaged social groups, etc. See Legislative Decree 356 of 20 November 1990, Title III (Public granting institutions), adopted pursuant to the “Amato Law”, i.e. Law 218 of 30 July 1990; see also the statutes of the banking foundations.

[8] See Umberto Bertini, “Relazione di presentazione”, XVIII Convegno Annuale dell’Accademia Italiana di Economia Aziendale, Clueb, Bologna, 1996, p. 1 ff.: “The fact that these concerns’ purposes are not economic but social and humanitarian does not, in my view, affect their operations: the economic viability of a concern is independent of its institutional purposes. Rather it depends on the concerns’s model of governance, its organization, and its strategy; in a word, on the validity of its system of management.”

[9] A representative instance is Pellegrino Capaldo, “Le aziende non-profit tra Stato e mercato”, in XVIII Convegno Annuale dell’Accademia Italiana di Economia Aziendale, Clueb, Bologna, 1996, p. 13 ff.: “The non-profit concerns to which I refer, then, are private concerns acting within the sphere of individual liberty. The aspects to examine are essentially two. The first regards the technical and economic basis of these concerns, the conditions on which durable existence depends, and perhaps the circumstances in which, as a means of production, they may prove to be more effective than State concerns both in the interest of individuals and in the general interest. The second facet involves possible government action to foster the spread of non-profit concerns in the likely case that the foregoing analysis concludes that they can play a major role in the balanced growth and progress of the community.

Proper analysis begins by moving from a negative to a positive definition of the subject. It is easy to imagine that within the non-profit sector there are groups of concerns with different aims and different conditions of economic viability. That is, to gain a thorough understanding of these concerns it is not enough to grasp the mere fact, important as it is, of not being profit-making. One must go further to locate the significant elements of differentiation within the sector, hence to identify different types of non-profit concern. To this end, it will be helpful to step back and rethink the classification of concerns into for-profit and non-profit and in particular to re-examine the notion of profit. ”

[11] Not only to those supplying non-contractual productive factors, therefore, but also to directors, members, etc.

[12] For instance, consider a non-profit concern controlled by a foundation which itself is controlled by given persons thanks to the power to appoint a majority of the members of the foundation’s board. In this case, transferring the power of appointment through changes in the by-laws would be tantamount to an “atypical” transfer of control.

[13] Law 91 of 23 March 1981, published in Gazzetta Ufficiale della Repubblica Italiana, No. 86, 27 March 1981.

the United Kingdom

England

The Review of the Register of Charities

The Charity Commission

Under English charity law there is no statutory definition of charitable purposes. The present definition of charity can be traced back to the preamble to the Statute of Charitable Uses of 1601 which set out a list of purposes which were then regarded as charitable this included the relief of aged, impotent and poor people, the maintenance of schools of learning and free schools the repair of bridges ports, churches and highways the helpful young tradesmen, the relief or redemption of prisoners.

Over the years the Courts have added to this list of purposes applying the principle of whether a new purpose came within the spirit of the Preamble. Then in 1891 in Pemsel’s case Lord MacNaughten classified charitable purposes into four heads – the relief of poverty, the advancement of education, the advancement of religion and other purposes beneficial to the community. Since 1891 the Courts have continued to develop the list of charitable purposes and since the Charities Act 1960 the Charity Commission has played a major part in developing charity law to meet modern social needs using the same principles as the courts. It is because of this important role of the Commission that in the last few decades there have been comparatively few cases concerning charitable status in the courts. Examples of new charitable purposes introduced by the Charity Commission have been the promotion of racial harmony, the promotion of the equality of women with men and the provision of conflict resolution and mediation. As society changes so some purposes must cease to be charitable and an example of removal of charitable status by the Commission was that of rifle and pistol clubs which were originally charitable as being for the defence of the realm but would seem now unlikely to play a part in modern warfare.

Since the 1960’s there has been considerable debate in England on the definition of charity. There are always two viewpoints: either that there should be a new statutory definition of charitable purposes or development of the definition through interpretation of the law by the courts and the Charity Commission. Following the Deakin report on the Future of the Voluntary Sector in 1996 the National Council for Voluntary Organisations set up a Charity Law Reform Advisory Group in 1997 which is currently involved in a consultation on charity law reform, this includes the possibility of the introduction of a statutory definition. In the meantime, the Charity Commission embarked on a major Review of the Register of Charities. This was initiated in 1997 by a preliminary consultation and later a full consultation on the Framework document for the Review of the Register. This set out the background for the review and then went on to set out the characteristics of a charity which would be used to test both charities which were currently on the Register and organisations seeking charitable status. The reason for the review of the Register was stated to be that the Register had not been reviewed since it was first created over 35 years ago during which period social circumstances and public opinion had changed so that the Commission was to study the Register to find out whether some charities currently on it should possibly be removed and also whether there was scope to develop the boundaries of charitable status.

The consultation on the draft framework document elicited a large number of responses and following this two final documents were produced in March 1999. These were the Review of the Register which set out the essential characteristics of a charity and the Hallmarks of a Well Run Charity which set out best practice in charities to inspire public confidence. These documents make very interesting reading not only for charities in England and Wales but also for other jurisdictions looking at the concept of public benefit organisations. The Essential Characteristics of a Charity includes the following criteria “that the organisation must have aims directed to the provision of something of clear benefit to others in society, it must not be concerned with benefiting individuals in a way which outweighs any benefit to the public, it must be directed to things that overall are not harmful to human kind, the objects must be certain and lawful and not be pursued to party or other political aims, the organisation must be independent and able to show that any personal professional or commercial advantage is and will continue to be incidental to carrying out its charitable aims and finally it does not impose conditions on access or membership that in practice restricts the availability of facilities in a way that results in the organisation as a whole not benefiting the public”.

The Hallmarks of a Well Run Charity states inter alia that the charity must be run by a clearly identifiable body of people who take responsibility and are accountable for controlling the charity so that it is economically and effectively run and who act with integrity in the interests of the charity and without regard to their personal interests. This is a statement of the fiduciary duties of Boards which would be relevant in most not for profit organisations world-wide.

As part of the Review of the Register the Charity Commission has now embarked on looking at a number of areas where there is potential scope for development of charity law. The procedure in each case is that a discussion document is produced for consultation and following representations from both intermediary bodies and professional bodies and individual charities a final publication is produced. The first two discussion papers which came out in 1998 were on Charities for the Relief of Unemployment and the Promotion of Urban and Rural Regeneration, the final document in each case was produced in March this year. The introduction of the new charitable head of the relief of unemployment was the development of the decision in IRC v Oldham Training Enterprise Council. In this case the Court decided that the organisation in question was not charitable as the objects included the object to provide support services and advice to new businesses and this could in practice promote the private interest of individuals whether or not there was a wider public benefit. However the Judge went on to say that the relief of unemployment could itself be within the fourth head of charitable purposes. Until the development of this new head there have been a large number of registered charities concerned with the plight of the unemployed but these have come either within the relief of poverty or the advancement of education where training is provided or in specific cases within the relief of disability. In English charity law there are different tests for public benefit under the different heads of charity and under the fourth head public benefit must be proved so that the final publication on the Relief of Unemployment sets out in some detail the criteria which must be met in the case of charities seeking registration under the new head of the Relief of Unemployment to show that there is sufficient public benefit. The final guidance has drawn on the responses to the consultation document setting out examples of the sort of cases in which charitable activities in the field of the relief of unemployment could come within the stated criteria.

The criteria which must be satisfied if a charitable organisation is to relieve unemployment are that it must be set up for the primary purpose of relieving unemployment for the public benefit, its activities must be directed to the relief of unemployment generally or to a significant section of the community in a way which can be demonstrated objectively and any benefit to private interests must be strictly incidental to its primary purpose. As with many charitable purposes it is this balance between public and private benefit which is the crucial test. The guidance goes on to set out a list of the activities which the Commission will regard as acceptable in the context of the relief of unemployment. This includes the provision of advice and training to unemployed individuals concerning employment, the provision of practical support to unemployed people by way of accommodation, child care facilities, or assistance with travel, the provision by charities of land and buildings that below market or subsidised rents to businesses starting up, the provision of capital grants for equipment to new businesses and the payment by a grant making charity to an existing commercial business to take on additional staff from among unemployed people. It is possibly this last case which is the main departure from the previous position where the private benefit must be closely monitored.

The second new area which went out for consultation in 1998 and where the final document was produced in March this year is the Promotion or Urban and Rural Regeneration. Again this is a new fourth head charitable purpose and charities which have been working in this area in the past have been registered either under the heads of the relief of poverty, the advancement of education, the prevention and protection of health or environmental purposes. The Commission has now recognised that the promotion of urban and rural generation for public benefit in areas of social and economic deprivation is a charitable purpose in its own right. Again a number of criteria have to be met to bring an organisation within this new head and to demonstrate the necessary level of public benefit. These are that the organisation has effective criteria to determine whether or not an area is in need for regeneration, that it will undertake at least three or four listed activities and these activities cover a broad spectrum of regeneration work, the public benefit from its activities outweighs any private benefit and the objects are exclusively charitable. The new head would thus not be available to a single issue organisation but it must carry out a range of activities which could include the provision of housing for those in need, helping unemployed people find employment, the provision of land and buildings on favourable terms to businesses in order to create training and employment opportunities for unemployed people, the provision maintenance and improvement of roads and accessibility to main transport routes, the provision of recreational facilities, the preservation of buildings in the area which are of historical or architectural importance and the provision of public amenities.

In 1999 three new discussion documents have been published. These are on Community Development, the Recreational Charities Act 1958 and, what is possibly the most contentious area, the maintenance of an accurate register of charities which looks at the removal of charities from the Registers.

The paper on the Promotion of Community Development as a new fourth head is a very interesting one. This is an area which has been under discussion between the Commission and organisations in the community development world for some years. The discussion document defines community development as involving the empowerment of communities which are socially and economically disadvantaged or excluded, usually but not necessarily a local community where the measure of success is not in the achievement of aims but in the process. It also sets out typical activities such as helping people to form community groups, the provision of advice and support to groups on resources, facilities and strategy, helping groups to develop links and enabling groups to become more self sufficient. To come within the new fourth head of promotion of community development the criteria to be satisfied would be that the community must be socially and economically deprived using objective criteria such as the index of local deprivation or the proposed indicators of social exclusion. The activities would have to be shown to achieve the object and the extent of private benefit would have to assessed. A suggested object is “to develop the capacity and skills of in such a way that they are better able to identify and help meet their needs and to participate more fully in society”. The legal basis for the development of this new charitable head is by analogy to the advancement of education in that community development provides opportunity to acquire skills, also by analogy to rehabilitation of various groups which is a charitable purpose dating back to the 1601 statute and the promotion of good citizenship. The public benefit test will be met as by increasing skills and competencies and self confidence in members of the community public money for communities will be used more effectively and it is in the interest of society that the capacity of socially and economically disadvantaged communities should be developed. The paper also states that capacity building promotes social cohesion.

The discussion paper on the Maintenance of an Accurate Register of Charities is a very interesting document which analyses the various cases where an institution on the Register of Charities could be removed and the legal consequences of such removal. The paper states three different cases where there could be a removal: firstly where there was a mistake in registration that is where the institution was never charitable but was placed on the Register in error possibly because of wrong information or because of an error or because a view of the law has subsequently being changed by case law. If the institution was never in fact charitable then the assets have never been held for charitable purposes so that they can remain with the institution. This will obviously raise some issues particularly whether the Inland Revenue or donors who gave to the institution on the mistaken belief that it was a charity may have possible claims. The second case is where there has been a change of social circumstances so that although the institution when registered was established for what were then exclusively charitable purposes it is now held that those purposes are no longer charitable. This is of course the most controversial position and likely to be queried by trustees and professional advisers. Again there are several potential situations: if one of the purposes remains charitable then the trustees will need to apply the funds for that purpose. If however none of the purposes are considered to be charitable any longer then the consequences will depend on the legal structure of the institution and whether the property is deemed to be held on trust. This is a complex legal issue arising from English trust law. In the case of an unincorporated charity that is a trust, an unincorporated association or a body incorporated by royal charter (these structures are still very common in England) the property will always be held on charitable trust. In the case of a charitable company limited by guarantee it will be a question of fact whether the property is held by the company as part of its corporate property in which case it is not held on trust or whether it is held by the company as trustee. Where the property is held on trust the trustees will first be given the opportunity to alter the terms of their governing document to declare charitable purposes. If this is not possible then they may apply for a cy-pres Scheme that is a scheme that directs that the assets should be held on trust for a charity with purposes as near as possible to the existing trusts.